IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10922

ROBERT JOHN SHARPE; CINDY GUARISCO; WILLIAM CHASE MOEN; 

GARY DOWNARD; for themselves as individuals and on behalf of themselves 

and for all others similarly situated, 

 Plaintiffs - Appellants

v.

AMERIPLAN CORPORATION, a Texas Corporation; DENNIS BLOOM, an 

individual; DANIEL BLOOM, an individual; DOES, 1-100 Inclusive;

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS, ELROD, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:*

As the use of arbitration clauses grows, so too do the legal arguments 

surrounding their validity and enforceability. In this appeal of a district 

court’s order compelling arbitration, Plaintiffs raise numerous challenges to an 

arbitration clause, including the following: that the arbitration clause was not 

supported by consideration, is illusory, is unconscionable, does not cover the 

dispute in this case, and was waived because it was not raised early enough in 

* Judge Costa participated by designation in the oral argument of this case as a United 

States District Judge for the Southern District of Texas. Since that time he has been 

appointed as a Fifth Circuit Judge.

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2014

Lyle W. Cayce

Clerk

 

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the lawsuit. We find these arguments unavailing, but one more that Plaintiffs 

raise warrants closer consideration under the unusual facts of this case: they 

contend that the arbitration clause cannot be harmonized with other dispute 

resolution procedures contained in earlier agreements that remain in effect. 

I.

The independent business owners (IBOs) in AmeriPlan’s network earn 

income by selling health plans and recruiting additional IBOs. If IBOs fulfill

certain criteria, they can achieve the rank of Sales Director and generate 

“lifetime residual income” through commissions from the IBOs they recruit—

known as their “down lines.” The four named Plaintiffs were all Sales 

Directors by the time AmeriPlan terminated their contracts.

AmeriPlan gave Plaintiffs notice that it was terminating their contracts 

without cause on February 14, 2011, along with approximately 800 other Sales 

Directors. After issuing one final commission check, AmeriPlan ceased paying 

the residual income generated by the Sales Directors’ down lines. Plaintiffs

filed suit, alleging that the promised lifetime vested residual income was a 

misrepresentation and that AmeriPlan had breached their contracts by ceasing 

the payments. 

A.

Three contracts “represent the entire agreement by and between the 

Parties”: (1) the Broker Application and Agreement; (2) the Sales Director 

Agreement; and (3) the Policies and Procedures Manual. The Broker and Sales 

Director Agreements, which incorporate the Manual by reference, include an 

amendment provision stating that they “may not be changed except by written 

amendment duly executed by all parties, except as otherwise provided in this 

Agreement.” The Broker Agreement provides, however, that the Manual can

“be hereinafter amended, modified or revised in the sole discretion of 

AmeriPlan . . . and Broker further covenants and agrees to obtain and comply 

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with any and all such amendments, modifications or revisions of the Broker 

Manual which may be hereinafter made by AmeriPlan.”1

The agreements are not the same for every plaintiff. Two of them—

Robert John Sharpe and Gary Downard—signed Sales Director Agreements

(in 2001 and 1998, respectively) that contain the following language:

6.07.01. THE PARTIES AGREE TO SUBMIT ANY CLAIM, 

CONTROVERSY OR DISPUTE ARISING OUT OF OR

RELATING TO THIS AGREEMENT (AND ATTACHMENTS) OR

THE RELATIONSHIP CREATED BY THIS AGREEMENT TO 

NON-BINDING MEDIATION PRIOR TO FILING SUCH CLAIM 

CONTROVERSY OR DISPUTE IN A COURT. . . . 

NOTWITHSTANDING THE FOREGOING, THE PARTIES MAY 

BRING AN ACTION (1) FOR MONIES OWED, (2) FOR 

INJUNCTIVE OR OTHER EXTRAORDINARY RELIEF, OR 

(3) INVOLVING THE POSSESSION OR DISPOSITION OF, OR 

OTHER RELIEF RELATING TO, REAL PROPERTY IN A 

COURT HAVING JURISDICTION AND IN ACCORDANCE 

WITH [THE NEXT PARAGRAPH] BELOW, WITHOUT 

SUBMITTING SUCH ACTION TO MEDIATION. 

6.07.02. WITH RESPECT TO ANY CLAIMS, 

CONTROVERSIES OR DISPUTES WHICH ARE NOT FINALLY 

RESOLVED THROUGH MEDIATION, SALES DIRECTOR 

HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE 

JURISDICTION OF THE STATE COURTS OF DALLAS 

COUNTY, TEXAS AND THE FEDERAL DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION. 

. . . VENUE FOR ANY LEGAL PROCEEDING RELATING TO OR 

ARISING OUT OF THIS AGREEMENT SHALL BE DALLAS 

COUNTY, TEXAS . . . . THIS AGREEMENT SHALL BE 

INTERPRETED AND CONSTRUED UNDER TEXAS LAWS.

1 Plaintiff Guarisco’s Agreement has slightly different wording for this provision: 

“Broker further acknowledges that he/she has received a copy of AmeriPlan’s Policies and 

Procedures and Compensation Plan which are expressly incorporated into this Agreement by 

reference. Broker agrees to abide by all Policies and Procedures contained therein and any 

amendments, revisions or additions thereto.” 

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William Moen’s Sales Director Agreement (executed in 2004), while identical 

in other relevant respects, moves the jurisdiction and venue provisions one 

county north, to Collin County, where AmeriPlan maintains its corporate 

headquarters. 

In contrast, Cindy Guarisco’s Sales Director Agreement, signed years 

earlier in 1994, contains the following provision titled “Governing Law and 

Venue”: “This agreement is to be governed by and construed in accordance with 

the laws of the State of Texas. Any action brought on matters relating to this 

Agreement shall be maintained in Dallas, Dallas County, Texas.” The 

difference between these provisions will become important. 

None of the Sales Director Agreements contained an arbitration clause

when the Plaintiffs entered into them. Nor did the original Policy Manual. 

That changed after August 2010, when a Dallas County jury returned a 

$5.5 million verdict in favor of a Sales Director who claimed that AmeriPlan 

had failed to pay the promised lifetime residual income. Less than three 

months later, on November 15, AmeriPlan issued a revised version of the 

Policy Manual, which contained an arbitration clause. AmeriPlan made 

continued access to each Sales Director’s “back office” web portal contingent 

upon agreement to the revised Policy Manual. Moen and Sharpe each clicked 

“I Agree” on the website to gain access to their portals. Guarisco and Downard 

never logged on to the website, so AmeriPlan mailed them a letter explaining 

that the Policy Manual had been updated, along with a paper copy of the 

revisions. 

The arbitration provision, located on page 22 of the revised Policy 

Manual under the heading “Arbitration of Disputes,” states:

Any issue, dispute, claim or controversy (collectively, the “Claim”)

between AmeriPlan or any officer, director, employee, manager,

member, affiliate, legal counsel and/or advisor of AmeriPlan and

IBO/Sales Director, arising out of or relating to the Policies and

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Procedures Manual then in effect, the IBO and/or Sales Director

Agreements or any of the other documents, shall be resolved by

binding arbitration at the AmeriPlan headquarters in Plano, 

Texas. The Claim shall be governed by the laws of the State of 

Texas.

Other provisions under the arbitration heading address splitting 

arbitration expenses and limiting awards to actual damages. The Policy 

Manual contains a severability clause providing that any unenforceable 

provisions will not invalidate the remainder of the agreement.

B.

On May 21, 2012, Plaintiffs filed this class action in the Superior Court 

of California for the County of Los Angeles. AmeriPlan removed the case to 

federal court. Then, invoking the venue provisions in the Sales Director 

Agreements, AmeriPlan successfully sought a transfer to the Northern District 

of Texas.

Once the case reached federal court in Dallas, AmeriPlan filed an answer 

asserting, among other things, that the claims were subject to arbitration. 

After Plaintiffs filed a motion for class certification, AmeriPlan moved to 

compel arbitration and stay or dismiss Plaintiffs’ claims pursuant to the 

Federal Arbitration Act. 

The magistrate judge issued an opinion recommending dismissal of the 

action in favor of arbitration. She recommended, however, that the arbitration 

not be governed by two clauses she found to be substantively unconscionable.2 

2 The two stricken provisions were paragraphs (h) and (i). Paragraph (h) provided 

that a material breach occurs if either party circumvents the arbitration clause by seeking 

remedies through a court of law, and “the breaching party shall bare [sic] all costs of court, 

attorneys’ fees, and other fees arising from the breach”; and paragraph (i) provided that, as 

a “condition precedent” to filing a claim, the claimant and respondent are each required to 

deposit $25,000 cash into an escrow account, which shall be applied to the costs of arbitration. 

See Sharpe v. AmeriPlan Corp., 2013 WL 3927620, at *7 (N.D. Tex. July 30, 2013). 

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The district court adopted the recommendation and ordered that the case be 

dismissed without prejudice in favor of arbitration but with the two 

unconscionable provisions severed from the arbitration provisions. Plaintiffs 

appeal the decision compelling arbitration.

II.

We review a district court’s ruling on a motion to compel arbitration de 

novo. Klein v. Nabors Drilling USA L.P., 710 F.3d 234, 236 (5th Cir. 2013).

To determine whether the parties agreed to arbitrate this dispute, we 

ask two questions: “(1) is there a valid agreement to arbitrate the claims and 

(2) does the dispute in question fall within the scope of that arbitration 

agreement.” Sherer v. Green Tree Servicing, LLC, 548 F.3d 379, 381 (5th Cir. 

2008). “[A]rbitration is simply a matter of contract between the parties,” First 

Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995), and the first step of 

the analysis—the validity of an agreement—is governed by state law contract 

principles. Klein, 710 F.3d at 236. Both parties agree that Texas law applies 

to this dispute. Only at the second step of the analysis—determining the scope 

of the arbitration agreement—do courts apply the federal policy favoring 

arbitration and resolve ambiguities in favor of arbitration. Id. at 236–37. 

Plaintiffs raise a host of issues contesting both the validity and scope of 

the arbitration provision added to the Policy Manual. In addition, they assert 

that the entire arbitration provision is unconscionable and that AmeriPlan 

waived its right to enforce any agreement to arbitrate by not raising the issue 

until the case had been transferred to the Northern District of Texas. We first 

address their argument that the arbitration provision cannot be harmonized 

with the preexisting dispute resolution provisions contained in the Sales 

Director Agreements. 

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A.

As this court recently explained, the question whether an arbitration 

provision conflicts with other dispute resolution provisions is properly 

analyzed under the “validity” step of the arbitration analysis. Klein, 710 F.3d 

at 237. State law, which the parties agree is Texas law, thus controls that 

question and the Federal Arbitration Act’s presumption in favor of arbitration

is not implicated. See id. at 236–37.3

In determining whether the arbitration provision added to the Manual 

in November 2010 can be harmonized with the dispute resolution provisions in 

the Sales Director Agreements, the preliminary question is whether the latter 

provisions survived the amendment to the Manual. Ordinarily an amendment

to a contract would supersede prior conflicting provisions,4 but that is not the 

case here for two reasons. First, the Broker and Sales Director Agreements, 

which contain the original dispute resolution provisions, “may not be changed 

except by written amendment duly executed by all parties, except as otherwise 

provided in this Agreement.” So although the Manual could be amended 

without the need for a written agreement executed by all parties, such an 

amendment could not override a provision in the Broker and Sales Director 

3 Recent cases from other circuits have followed this same approach. See, e.g., Applied 

Energetics, Inc. v. NewOak Capital Mkts., LLC, 645 F.3d 522, 525–26 (2d Cir. 2011) (“Even 

assuming, as the district court found, that the provisions in the two agreements could 

reasonably be read as complementary, we conclude that the district court erred in applying 

the presumption in favor of arbitration.”); Goldman, Sachs & Co. v. City of Reno, 747 F.3d

733, 746 (9th Cir. 2014) (“The flaw in this argument is that it erroneously assumes that the 

presumption in favor of arbitrability applies. . . . Where, as here, the presumption does not 

apply, however, we use general state-law principles of contract interpretation to effectuate 

the intent of the parties. As a result, the mere availability of an alternative reading of the 

forum selection clauses is beside the point.”).

4 See, e.g., Cadle Co. v. Henderson, 982 S.W.2d 543, 546 (Tex.App.—San Antonio 1998, 

no pet.) (“A modified agreement takes the place of the original.”); Boudreaux Civic Ass’n v. 

Cox, 882 S.W.2d 543, 547–48 (Tex.App.—Houston [1st Dist.] 1994, no writ) (“A modification 

to a contract creates a new contract that includes the new, modified provisions and the 

unchanged old provisions.”).

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Agreements. Otherwise, amendments to the Manual could undo the Broker 

and Sales Director Agreements in their entirety, rendering the “written 

amendment” requirement a nullity. Second, AmeriPlan relied on the venue 

clause, which is included in the dispute resolution provisions in the Sales 

Director Agreements but does not appear in the arbitration provision of the 

amended Manual, to transfer the case from the Central District of California 

to the Northern District of Texas, and thus is estopped from arguing that the 

dispute resolution provisions are no longer in effect. Indeed, it concedes that 

the provisions in the Sales Director Agreements remain in effect, arguing 

instead that they can be harmonized with the later-added mandatory 

arbitration provision.

In resolving that harmonization issue, “we must examine and consider 

the entire writing in an effort to harmonize and give effect to all the provisions 

of the contract so that none will be rendered meaningless.” Italian Cowboy 

Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)

(quoting J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)). 

Because of the significant differences noted above between the multifaceted 

dispute resolution provisions in the Sales Director Agreements signed by 

Sharpe, Moen, and Downard, and the provision in the earlier one signed by 

Guarisco that only addresses venue and choice of law, we address the 

provisions separately.

The magistrate court found no “inherent conflict” between the dispute 

resolution provisions in the Sales Director Agreement and the arbitration

provision in the Policy Manual, holding that they could each be given definite 

meaning as a matter of law because the Sales Director Agreement “merely 

designates the venue for any [legal] proceedings,” while the arbitration 

provision “requires that certain claims be submitted to binding arbitration.”

Sharpe, 2013 WL 3927620, at *4. We agree with that conclusion when it comes 

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to Guarisco’s agreement. The relevant provision in her Sales Director 

Agreement includes a choice-of-law clause and then states that “[a]ny action 

brought on matters relating to this Agreement shall be maintained in Dallas, 

Dallas County, Texas.” There is nothing else. Requiring that any lawsuit be 

filed in Dallas is not incompatible with the later-added arbitration 

requirement because lawsuits often precede arbitration (when a court may be 

asked to decide the validity, scope, and enforceability of an arbitration clause)

or follow arbitration (when a court may be asked to enforce or set aside an 

arbitration award). See Pers. Sec. & Safety Sys. Inc. v. Motorola Inc., 297 F.3d 

388, 395–96 (5th Cir. 2002) (holding that an arbitration clause could be 

harmonized with a forum selection clause, which could be read to mean “that 

the parties must litigate in Texas courts only those disputes that are not 

subject to arbitration”); Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 

278, 284–85 (2d Cir. 2005) (“The Forum Selection Clause can be understood . . 

. as complementary to an agreement to arbitrate.”); In re Winter Park Constr., 

Inc., 30 S.W.3d 576, 578 (Tex. App.—Texarkana 2000, no pet.) (holding that a 

forum selection clause did not supersede a preexisting arbitration clause 

because the two provisions could be reconciled). A forum selection clause thus 

still has effect in determining where any lawsuit—even one that may result in 

an order compelling arbitration—must be brought.

The relevant provisions in the Sales Director Agreements signed by 

Sharpe, Moen, and Downard, however, are far more extensive than a forum 

selection clause. And they do not merely require nonbinding mediation prior 

to arbitration, as AmeriPlan urges. The dispute resolution provisions in the 

Sales Director Agreements, which take up close to a full page and are 

emphasized through the use of all caps, establish a two-tiered approach to 

resolving claims. The first provision states “the parties agree to submit any 

claim . . . to non-binding mediation prior to filing such claims, controversy or 

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dispute in a court.” A second provision then reiterates that claims will be 

adjudicated in court if mediation is unsuccessful: “With respect to any claims, 

controversies or disputes which are not finally resolved through mediation, 

Sales Director hereby irrevocably submits to the non-exclusive jurisdiction” of 

particular state and federal courts. This court-focused provision also specifies 

three types of actions that “the parties may bring . . . in a court having 

jurisdiction . . . without submitting such action to mediation.” Together, these 

provisions create a system in which claims will be submitted to the jurisdiction 

of a court if nonbinding mediation is either unproductive or not required. The 

language in Guarisco’s agreement demonstrates that AmeriPlan knew how to 

draft a narrow forum selection clause, and its decision in later Sales Director 

Agreements to add far more extensive language establishing a full dispute 

resolution process must be given effect as creating something beyond that.

AmeriPlan’s argument that the dispute resolution provisions in the Sales 

Director Agreements apply to only a limited scope of claims “not governed by 

arbitration” is also at odds with the contracts’ broad language. In fact, the 

categories of claims that are listed in the arbitration provision are quite similar 

to those listed in the Sales Director Agreements. The Sales Director 

Agreements refer to “any claim, controversy or dispute” being submitted first 

to mediation and then the “jurisdiction” of state or federal court, which is 

similar to the arbitration provision’s language stating that “any issue, dispute, 

claim or controversy . . . shall be resolved by binding arbitration.” Compare 

Applied Energetics, 645 F.3d at 525 (“Here, the Placement Agreement’s 

language that ‘[a]ny dispute’ between the parties ‘shall be adjudicated’ by 

specified courts stands in direct conflict with the Engagement Agreement’s 

parallel language that ‘any dispute . . . shall be resolved through binding 

arbitration.’ Both provisions are all-inclusive, both are mandatory, and neither 

admits the possibility of the other.”), with Pers. Sec. & Safety Sys., 297 F.3d at 

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395–96 (“Rather than covering all ‘disputes’ or all ‘claims’ like the arbitration 

provision in the Product Development Agreement, the forum selection clause 

confers ‘exclusive jurisdiction’ on Texas courts only with respect to ‘any suit or 

proceeding.’ This limitation suggests that the parties intended the clause to 

apply only in the event of a non-arbitrable dispute that must be litigated in 

court.”). Again, a comparison with the language in Guarisco’s agreement is 

useful. The venue provision in Guarisco’s agreement states only that “any 

action . . . shall be maintained in Dallas,” not that the “claims, controversies or 

disputes” will be “submit[ted] to the . . . jurisdiction” of any particular court. 

The “submit[ted] to the . . . jurisdiction” language demonstrates an intent for 

a court to adjudicate the merits of the claims. See Union Elec. Co. v. AEGIS 

Energy Syndicate 1225, 713 F.3d 366, 369 (8th Cir. 2013) (“[B]y agreeing in the 

endorsement ‘to submit to the jurisdiction of the Courts of the state of 

Missouri,’ [the insurer] has agreed to have, in words near the endorsement’s 

beginning, ‘any dispute relating to this Insurance or to a CLAIM’ resolved in 

those courts. The endorsement thus entirely supplants the condition’s 

mandatory arbitration provision.”). The mediation language also supports 

this view, as it authorizes claims not resolved in mediation “to [be] fil[ed] . . . 

in a court.”

One final comparison is instructive. The dispute resolution provisions 

in the Sharpe/Moen/Downard Sales Director Agreements are far more detailed 

and expansive than the nonbinding mediation provisions we recently 

harmonized with an arbitration clause in Klein v. Nabors Drilling USA L.P. 

Klein held that a general provision stating that nothing in the parties’ 

agreement was “intended to violate or restrict any rights of employees 

guaranteed by state or federal laws” did not conflict with an unambiguous 

arbitration provision creating “an exclusive procedural mechanism for the final 

resolution of all Disputes falling within its terms.” 710 F.3d at 239. The 

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priority between nonbinding mediation and arbitration was explicitly 

elucidated in the Klein contract, which stated that if the parties “previously 

attempted and failed to resolve the Dispute by mediation or another 

nonbinding mechanism, the Dispute shall be arbitrated.” Id. at 238; see also,

e.g., Bridgestone Firestone N. Am. Tire, LLC v. J & J Tire Co., L.L.C., 602 F. 

Supp. 2d 770, 772 (S.D. Miss. 2009) (noting that all parties agreed that an

arbitration clause was valid that stated, “[i]f the parties are unable to resolve 

the dispute through mediation, then the dispute will be submitted for binding 

arbitration”).

The dispute resolution provisions in the Sharpe/Moen/Downard Sales 

Director Agreements therefore are not simply forum selection clauses like the 

one we addressed in Personal Security & Safety Systems Inc. v. Motorola Inc.,

297 F.3d 388 (5th Cir. 2002), and they do not merely impose a prearbitration 

mediation requirement like the one at issue in Klein. Instead, the Sales 

Director Agreements provide a two-step dispute resolution process in which

“any claims, controversies or disputes which are not finally resolved through 

mediation [are] submit[ted] to the non-exclusive jurisdiction of” particular 

state and federal courts. Those expansive dispute resolution provisions cannot 

be harmonized with the similarly expansive arbitration provision without 

rendering the dispute resolution provisions meaningless. Accordingly, we hold 

that because the Sales Director Agreements signed by Sharpe, Moen, and 

Downard expressly allow litigation of these claims, these three Plaintiffs are 

not compelled to arbitrate their claims. See Klein, 710 F.3d at 237 (“An 

agreement that allows for disputes to be resolved through either an arbitral or 

a judicial forum can hardly be considered a ‘valid agreement to arbitrate’ 

because the parties would not have agreed to submit any dispute to 

arbitration—they would have simply agreed that they had the option 

available.”).

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B.

Because Guarisco’s limited forum selection clause can be reconciled with 

the arbitration provision, we must consider the other arguments she raises 

challenging the order compelling arbitration. There are many of them, but we 

only briefly address a few because we largely agree with the reasons provided 

by the district court for why these challenges to the arbitration clause are 

unsuccessful. 

Guarisco argues that the arbitration amendment was not valid for two 

reasons—that it lacked consideration and was illusory. But bilateral promises 

to arbitrate, which the amendment contained, constitute valid consideration. 

In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006) (orig. 

proceeding). Nor is the arbitration clause illusory given that AmeriPlan’s

amendment included a savings clause that tracks the one the Supreme Court 

of Texas approved in In re Halliburton Co., 80 S.W.3d 566, 569–70 (Tex. 2002) 

(orig. proceeding) (enforcing an arbitration clause that allowed the employer to 

unilaterally amend the agreement because of a savings clause that prevented 

any unilateral change from being retroactive).

Guarisco contends that even if the arbitration clause is valid, this 

dispute does not fall within its scope because she filed the lawsuit after she 

had been terminated and the Manual containing the arbitration clause only 

applies to “Active” IBOs. Although this argument finds some support in the 

plain text of the agreement, on this issue the Federal Arbitration Act’s 

presumption favoring arbitration comes into play. Because the Act requires us 

to read the scope of the clause broadly, we conclude that it does cover this 

dispute based on representations made and contracts signed while Guarisco 

was an IBO.

Unconscionability is the next ground Guarisco cites in her attempt to 

avoid arbitration. Aside from the provisions the district court already found to 

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be unconscionable and that will not apply in Guarisco’s arbitration, we do not 

find that any of the other provisions are unconscionable. 

Finally, Guarisco contends that AmeriPlan waived its right to compel 

arbitration by waiting to file a motion to compel arbitration until after 

Plaintiffs filed a motion for class certification. Even though AmeriPlan placed 

Plaintiffs on notice of its intent to arbitrate once it filed its original answer in 

Dallas federal court, Guarisco contends that invoking the judicial process to 

remove the case to federal court and then seek transfer to another federal 

district indicated an intent to litigate rather than arbitrate that amounts to 

waiver. As explained above, however, the forum selection clause gave 

AmeriPlan the right to have its motion to compel arbitration heard in the 

judicial forum to which the parties had agreed. Because it provided notice of 

its intent to arbitrate in the first answer it filed and the delay between the 

filing of that answer and the motion to compel was not unreasonable, 

AmeriPlan did not waive its right to enforce the arbitration clause. See 

Tenneco Resins, Inc. v. Davy Int’l AG, 770 F.2d 416, 420 (5th Cir. 1985) (“[O]nce 

the defendant, by answer, has given notice of insisting on arbitration the 

burden is heavy on the party seeking to prove waiver.”).

Guarisco therefore must arbitrate her claims.

* * *

It may seem arbitrary that Guarisco must arbitrate her claims while her 

otherwise similarly situated coplaintiffs have the option of pursuing litigation. 

But that result flows from the basic contract law principle that different 

contractual language should be read differently. 

For these reasons, with respect to Plaintiffs Sharpe, Moen, and 

Downard, we REVERSE the district court’s order dismissing the claims and 

compelling arbitration and REMAND for further proceedings consistent with 

this opinion. With respect to Guarisco, we AFFIRM the district court’s order

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dismissing her claims and compelling arbitration pursuant to all but the two 

severed unconscionable provisions of the arbitration agreement.

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